Wednesday, October 13, 2021

Failure to adequately investigate and present available defense challenging State’s central theory of case is ineffective assistance of counsel requiring new trial [PR GRANTED]

 William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, Keynen J. (K.J.) Wall, Quentin M. Templeton, and Russell J. Keller, of Forbes Law Group, LLC, of Overland Park, Stephan L. Skepnek, of The Sader Law Firm, of Kansas City, Missouri, and Kevin Babbit, of Fagan & Emert, LLC, of Lawrence, Kansas won in State v. Buchhorn, No. 122,252 (Kan. App. August 13, 2021) obtaining a new trial in a Douglas County second-degree murder prosecution.

The case involved the death of a nine-month old child. Ms. Buchhorn worked at the daycare where the child died. She was the last person who admitted to having contact with the child, but consistently denied harming the child. The State charged Ms. Buchhorn with first-degree murder.

The State’s theory of prosecution at trial relied on then Douglas County Coroner Erik Mitchell, who performed the autopsy:

Dr. Mitchell's autopsy revealed that O.O. had suffered a significant skull fracture but no brain swelling. Dr. Mitchell deduced that O.O. died instantly following a blow to the head, which he claimed released mechanical energy into the base of the brain causing ‘temporary cessation of function at the base of the brain’ or ‘depolarization of neurons.’ He suspected that O.O. was stepped on.

At trial, Buchhorn’s counsel presented testimony from forensic pathologist Dr. Carl Wigren that the skull fracture showed signs of healing, meaning the injury was a few days to a week old, and the cause of death was unknown. The defense did not directly address Dr. Mitchell’s “depolarization theory”. Ms. Buchhorn was convicted of the lesser-included offense of reckless second-degree murder.

Following the verdict, Ms. Buchhorn obtained new counsel who moved for a new trial arguing, inter alia, that her previous counsel provided ineffective assistance of counsel by failing to adequately investigate and challenge Dr. Mitchell’s dubious forensic testimony. To support those claims, the defense presented new medical expert testimony, including Dr. Sudha Kessler, a pediatric neurologist who had extensive experience treating pediatric brain injuries, who explained the “depolarization theory” was unreliable:

[Dr. Mitchell's theory is] just fantastical, because it's not something I have ever been taught, not something I teach, not something—just not consistent. It's not consistent with the medical literature because there is no literature on magical disruption of the brain that causes death and that doesn't exist. In addition to looking though my own textbooks, looking through the two database searches I did, I was so taken aback by all this that I ... [asked] my colleagues if they have heard of this idea; and honestly, most of the time, the response that I got was laughter.

The defense further presented testimony from Alice Craig, a professor at the University of Kansas School of Law and attorney at the Paul E. Wilson Project for Innocence & Post-Conviction Remedies, who opined that given Dr. Mitchell’s testimony on the “depolarization theory” at the preliminary hearing raised questions on its validity, reasonable counsel would have investigated the basis for the theory, recognized it was dubious, and challenged it directly. The district court denied the motion for new trial, noting Ms. Buchhorn’s trial counsel had considerable experience, and had prepared what was potentially a winning strategy at trial.

The COA reversed the district court, holding, under the Strickland v. Washington standard, that Ms. Buchhorn’s trial counsel ineffective and prejudiced her right to a fair trial in these circumstances. The failure to investigate the “depolarization theory” was objectively unreasonable given that it was clearly established as central to the State’s case prior to trial, and minimal investigation would have established its dubious nature. Therefore, the defense utilized by counsel at trial was not a strategic decision, but one based on a failure to investigate other available defenses. The COA explained:

The trial court erred in finding it was reasonable for Buchhorn's counsel to rely upon Dr. Wigren to define the medical issues they needed to address. The ultimate control of a case rests with the lawyers and not the expert witnesses. It is incumbent upon the lawyers to define clearly for the experts the scope of their assigned tasks. Here, the communication channel broke down. The lawyers expected Dr. Wigren to tell them everything they needed to know about O.O.'s death and Dr. Mitchell's theory on causation. Dr. Wigren, however, apparently understood his engagement far more narrowly and offered an expert opinion on the skull fracture and possible causes of death rather than a critique of Dr. Mitchell's theory.

The COA further explained that while the decision to hire Dr. Wigren may have been reasonable to contest the timing of the skull fracture, the failure to reasonably investigate, and to present expert testimony challenging the State’s dubious central theory of the case was not. The COA further found Ms. Buchhorn’s defense was prejudiced by these failures given that the lack of any physical evidence tying her to the death meant the case hinged on the credibility of Dr. Mitchell’s “depolarization theory”, and evidence could have been presented establishing its dubious nature.  

[Update: the state filed a petition for review on September 7, 2021.]

[Further update: the KSC granted the state's PR on November 24, 2021.]

No comments: